Wills 7 : Discrimination

Q: In my will, I want to create a testamentary trust to finance the college education of female students.  The income from the residuary of my estate will be applied to defray the first-year college expenses of five young women who shall have graduated from my old high school.  They will be selected by the board of education.  Is that OK?

A: Whether of not the law permits the school district to co-operate, it may be unwilling to do so.  In that case, the court can exercise its ‘general equitable power’ to permit a deviation from the administrative terms of your trust.  The court will appoint a successor trustee, replacing the school district with someone able and willing to administer the trust according to its terms.

The Fourteenth Amendment to the United States Constitution bars certain arbitrary, wrongful government actions.  A school district is a public entity.  It is likely to deem itself barred from co-operating in a trust such as yours.  You would do better to establish, from the get-go, a private panel to make the selection.

The Fourteenth Amendment has never required the State to exercise the full extent of its power to eradicate private discrimination.  Once you substitute a private panel – or the court does it for you – the minimal participation of the courts in your trust’s administration should not cause any private discrimination in your trust to become ‘public discrimination’.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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